THE LAW * QUESTIONS JURIDIQUES

Controversial AIDS-transmission case sent to trial by Ontario judge Cameron Johnston

A n Ontario judge has ordered a HIV-positive man to stand trial on three charges of aggravated sexual assault and three of criminal negligence causing bodily harm. The charges (see Can Med Assoc J 1992; 146: 2065-2070) stem from allegations that the man infected three women with HIV. Six other charges, of being a common nuisance and administering a noxious substance, were dismissed at a preliminary hearing in May. During the 11-day preliminary hearing, which took place over several months, the court was told that Charles Ssenyonga, 35, learned he was HIV positive in March 1989. He continued to have sexual relations with at least four women, three of whom reported him to the police and then to the medical officer of health after they tested positive for antibodies to HIV. In a separate proceeding, Ssenyonga had been served in February 1990 with a medical officer of health order not to engage in sexual practices involving any form of penetration, regardless of whether or not a condom was used. He is currently awaiting trial on a charge of contempt of court for breaching that injunction. While final disposition of the Cameron Johnston is a freelance writer living in London, Ont. 522

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While final disposition of the assault and negligence cases is still several months away, there are already signs that this case will challenge established legal precedents. -

assault and negligence cases is still several months away, there are signs that this case will challenge established legal precedents. Ssenyonga's lawyer, Fletcher Dawson, offered no evidence during the preliminary hearing on the charge of criminal negligence and that charge was automatically put over for trial. However, Dawson had argued strongly for dismissal of the aggravated sexual assault charge, which carries a possible penalty of life imprisonment. He said the women consented to having intercourse with Ssenyonga and one of them even continued the sexual relationship after learning that he was HIV positive. The fact that Ssenyonga failed to inform the women that he was carrying the virus is "collateral" to the act of intercourse,

Dawson argued in the court. He also contended that a legal precedent involving a similar case had already established that it is "the nature and quality of the act" that is important, not the fact that the accused was HIV positive. The women consented to have sex with the accused and cannot suddenly come forward and claim that things would have been different had they known that he was HIV positive, Dawson argued. Judge Deborah Livington, of the Ontario Court of Justice's General Division, disagreed. She said that Ssenyonga knew he was HIV positive and had received counselling about the need to practise safe sex. Public policy should dictate different considerations for two people engaged in a LE 15 AOUJT 1992

sexual act than for participants involved in a hockey game who knowingly assume the risk that they might be injured. "The sanctity of the human body should militate against people 'consenting' to bodily harm," she said. Livingston said the testimony of the three complainants during their appearance on the witness stand in February was "searing evidence" of the destructiveness of the disease. The judge's decision could present difficulties for Ssenyonga when the case comes to trial because Dawson had hoped to argue that practising safe sex was a shared responsibility. Livingston's decision, which is not binding on other trial judges, rejects that argument. The less serious charges of creating a common nuisance were dismissed because, in the judge's words, "the complainants do not represent the community as a whole and therefore the charge is not warranted." As for the charge of administering a "noxious substance or thing," Livingston ruled that Ssenyonga lacked the intent to harm his former lovers by spreading the virus. Livingston admitted that the AIDS-as-a-weapon issue will create problems for the courts, but given "a sufficiently persuasive" Crown attorney and a properly instructed jury, there is a good possibility of conviction on the sexual assault charge. After the judge's decision, Ssenyonga stood silent as his girlfriend cried at the back of the courtroom. Dawson described the judge's interpretation as "interesting" and said he had not anticipated her ruling. Traditional courtroom practices, and a ban on the publication of evidence from the preliminary hearing, meant Dawson could not answer further questions about the case. Ssenyonga's trial has been scheduled to begin Sept. 8. . AUGUST 15, 1992

THERAPEUTIC INDEX

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INDEX THERAPEUTIQUE

Angiotensin converting enzyme inhibitor

Cerebral selective calcium antagonist

Monopril 412 A,B,C,D,E,F,G,H Vasotec 386, 494, 495, 540, 541

Sibelium

Anorectal therapy Anusol-HC

498

Antianginal/Antihypertensive agent Adalat XL

428 A,B,C,D, 538, 539

Antibacterial agent Cipro IV

476 A,B, 477

Antidepressant Zoloft

466, 467, 542, 543, 544

Antifungal agent Diflucan

384, 518, 519

Antihypertensive agent Cardura 462, 463, 528 Plendil 444 A,B,C,D

484, 485, 533

Cholesterol-lowering agent Mevacor 532, Inside Back Cover Pravachol 526, 527, Inside Front Cover Zocor 400,401,536,537

Gastrointestinal prokinetic agent Prepulsid

418, 419, 531

Histamine H2 receptor antagonist Zantac

406, 407, 530

Inhibitor of platelet function Ticlid

433, 434

Pediatric asthma prophylactic Zaditen 454, 455, 502

Smoking cessation aid Nicoderm

388, 389, 534, 535

Anti-inflammatory agent

Topical analgesia

Naprosyn SR

Zostrix

480, 481, 545

Antiviral agent Zovirax

382, 524

471, 473, 525

Asthma prophylaxis Becloforte 505, 506, 507

Bronchodilator Atrovent

Topical anesthetic for dermal analgesia Emla

394, 395, 529

Topical antibiotic

Anxiolytic Buspar

488, 489, 545

527, Outside Back Cover

Bactroban

390, 511

Topical antifungal agent Nizoral

514, 515, 544

Urinary antibacterial agent 408, 541

Noroxin

CAN MED ASSOC J 1992; 147 (4)

523